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HISTORICAL DEVELOPMENT OF CRIMINAL LAW IN SCOTLAND

NCJ Number
54870
Author(s)
HUNTER
Date Published
1978
Length
41 pages
Annotation
THE STRUCTURE OF THE COURT SYSTEM IN SCOTLAND IS DESCRIBED, HISTORICAL DEVELOPMENTS IN THE COUNTRY'S CRIMINAL JUSTICE SYSTEM ARE REVIEWED, AND FUNCTIONS OF PROSECUTORS ARE NOTED.
Abstract
THE JUDICIARY IN SCOTLAND TENDS TO BE NONSPECIALIST, PRIMARILY BECAUSE THE LEGAL PROFESSION AND COURTS OPERATE IN SMALL JURISDICTIONS WITH SMALL POPULATIONS. THREE ASPECTS OF THE CRIMINAL JUSTICE SYSTEM OVERLAP AND INTERACT AT MANY POINTS: SUBSTANTIVE CRIMINAL LAW, CRIMINAL PROCEDURES AND PRACTICES, AND CRIMINAL JUSTICE ADMINISTRATION. ONE OF THE MOST STRIKING FEATURES OF THE SYSTEM IS THAT WHILE SCOTLAND AND ENGLAND HAVE THEIR OWN SYSTEMS OF COURTS AND LAW, THEY SHARE THE SAME LEGISLATURE. THE FOLLOWING DIFFERENCES EXIST BETWEEN SCOTTISH AND ENGLISH PROCEDURES: (1) THE SCOTTISH SYSTEM OF PUBLIC PROSECUTION INVOLVES QUASI-JUDICIAL INVESTIGATION OF ALL RELEVANT EVIDENCE BY INDEPENDENT OFFICIALS UNDER THE DIRECTION OF THE LORD ADVOCATE BEFORE CHARGES ARE FINALLY FRAMED; (2) THERE IS AN ABSENCE, IN MOST CASES, OF THE REQUIREMENT OF CORROBORATION IN ENGLAND (THE OPPOSITE BEING TRUE IN SCOTTISH CRIMINAL LAW); (3) THE NOT PROVEN VERDICT IS AVAILABLE UNDER SCOTTISH LAW WHICH FOCUSES ATTENTION ON THE FACT THAT THE FUNCTION OF COURTS IS ALWAYS TO SCRUTINIZE THE RELIABILITY OF EVIDENCE IN DETERMINING GUILT OR INNOCENCE; (4) SCOTTISH JUDGES ARE NOT REQUIRED TO REHEARSE ALL EVIDENCE IN THEIR CHARGE AS ENGLISH JUDGES ARE; AND (5) THERE IS GREATER EMPHASIS ON STATUE LAW IN ENGLAND. HISTORICAL INFLUENCES OF SIGNIFICANCE IN SCOTLAND HAVE BEEN INVASION, IMMIGRATION, RELIGION, AND EDUCATION. THE CRIMINAL COURT STRUCTURE AND THE PUBLIC PROSECUTION SYSTEM ARE ROOTED DEEPLY IN THE COUNTRY'S HISTORY. MAIN CRIMINAL COURTS IN SCOTLAND ARE THE HIGH COURT OF JUSTICIARY, SHERIFF COURTS, AND DISTRICT COURTS. ADVOCATE DEPUTIES ARE ATTACHED TO CRIMINAL COURTS AND FUNCTION AS PROSECUTORS OF SERIOUS CRIMES BEFORE THE HIGH COURT OF JUSTICIARY. CHILDREN'S HEARINGS WERE INTRODUCED IN 1968 TO DEAL WITH JUVENILES UNDER 16 YEARS OF AGE. THE LORD ADVOCATE HEADS THE PUBLIC PROSECUTION SYSTEM. SERVING THE LORD ADVOCATE IN HIS CAPACITY AS PUBLIC PROSECUTOR IS THE CROWN OFFICE. THROUGHOUT DISTRICT COURTS, LOCAL REPRESENTATIVES OF THE PUBLIC PROSECUTOR PREPARE CASES FOR PROSECUTION IN HIGHER COURTS, TAKE STATEMENTS FROM WITNESSES, AND HAVE POWER TO GIVE DIRECTIONS TO THE POLICE IN MATTERS OF CRIMINAL INVESTIGATION. THESE LOCAL REPRESENTATIVES ARE KNOWN AS PROCURATORS FISCAL. PRELIMINARY INQUIRIES INTO CRIMINAL CHARGES ARE MADE CONFIDENTIALLY BY THE PUBLIC PROSECUTOR AND THOSE WHO ACT ON HIS BEHALF. AS A RESULT, EVIDENCE TO CHARGE AN ACCUSED PERSON DOES NOT GENERALLY COME TO PUBLIC NOTICE UNTIL TRIAL. NO PROVISION EXISTS FOR PUBLIC COMMITTAL PROCEEDINGS. CONSIDERABLE DISCRETION IS EXERCISED BY THE PUBLIC PROSECUTOR AND HIS REPRESENTATIVES AND BY THE POLICE. A BRIEF DISCUSSION OF SUBSTANTIVE CRIMINAL LAW IS PRESENTED. (DEP)